Williams, R v

The amendment to section 265 of the Criminal Justice Act 2003 by the Criminal Justice and Immigration Act 2008 did not repeal the transitional operation of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. Where that transitional regime applies, the court may order return to prison for the unexpired part of an earlier sentence and direct that the new sentence begin after that period.

On sentence, the aggregate term must comply with totality. Credit must be given for qualifying time spent on remand.

The appellant pleaded guilty at Sheffield Crown Court to possession of cocaine and acquiring criminal property. He was sentenced to six months' imprisonment for possession and, consecutively, two years and nine months for acquiring criminal property. The judge also ordered him to serve 455 days of an earlier sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

He appealed against sentence. The principal issue was whether amendments to section 265 of the Criminal Justice Act 2003 had removed the transitional power to make the recall period precede the new sentence. He also challenged the absence of remand credit and the overall length of the sentence.

1. Appeal allowed in part. The court rejected the challenge to the power to order return to prison. Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 remained effective under the applicable transitional provisions because the earlier offence had been committed before 4 April 2005 and the appellant had been released under the Criminal Justice Act 1991.

2. Section 265(1A) of the Criminal Justice Act 2003, inserted by the Criminal Justice and Immigration Act 2008, did not address or repeal the powers in section 116. It was compatible with both recall under section 116 and a direction that the new sentence begin after the recall period. The consequential amendment to section 116(7) expressly preserved that direction.

3. The appellant fell within the remaining transitional class. His release in June 2007 was under the earlier statutory regime. The order returning him to prison for 455 days was therefore lawful. The court found no arbitrariness or unfairness in the confined continuing operation of section 116.

4. The sentencing judge should have directed under section 240 of the Criminal Justice Act 2003 that the 275 days spent on remand count against sentence. The Court of Appeal gave that credit.

5. The six-month sentence for possession and the decision not to make the sentences concurrent were upheld. There was no evidential basis for treating the criminal-property offence as linked to the cocaine offence. However, the aggregate term of three years and three months was excessive under the totality principle, even allowing for the stated credit for the guilty pleas. The sentence of two years and nine months on count 2 was quashed and replaced with two years. The overall sentence became two years and six months, subject to the 275 days' remand credit.

• Court of Appeal (Criminal Division): Allowed the appeal only to reduce the sentence for acquiring criminal property and to direct credit for remand time.

• Sheffield Crown Court: On 27 October 2008, imposed six months' imprisonment for possession of cocaine, two years and nine months consecutively for acquiring criminal property, and a 455-day return-to-prison order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.